The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-Terrorism and International Humanitarian Law

26 Pages Posted: 21 Oct 2019 Last revised: 27 Oct 2019

Date Written: October 18, 2019

Abstract

The collapse of the Caliphate, including the resulting surrender of hundreds of fighters to the Syrian Democratic Forces, as well as the tweets from President Trump threatening his allies to release 800 Islamic State fighters if they would not take back their own citizens, has led to an intense debate on what to do with these so-called foreign fighters. Many counter-terrorism experts and international lawyers have argued that these fighters should be brought home and brought to justice before national courts, for moral, legal and long-term security reasons. In the context of national prosecutions, the aim should be to not have a one-size fits all, but rather a tailored approach, ensuring that perpetrators are prosecuted, as much as possible, for the actual crimes they have committed. If we consider foreign fighters to be individuals joining a non-state armed group in an armed conflict, there is by definition an important nexus between foreign fighters and armed conflict. Hence due regard should also be paid to international humanitarian law in the framework of their prosecution. This article will analyse and assess the first cases where the relationship between counter-terrorism and international humanitarian law played a role and aims to provide, based on the direction this discussion is heading, the necessary guidance.

Keywords: foreign fighters, counter-terrorism, international humanitarian law, war crimes, prosecuting

JEL Classification: K33

Suggested Citation

Cuyckens, Hanne and Paulussen, Christophe, The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship between Counter-Terrorism and International Humanitarian Law (October 18, 2019). Forthcoming, Journal of Conflict & Security Law, T.M.C. Asser Institute for International & European Law, Asser Research Paper Series 2019-04 , Available at SSRN: https://ssrn.com/abstract=3471908

Hanne Cuyckens (Contact Author)

Leiden University ( email )

Postbus 9500
Leiden, Zuid Holland 2300 RA
Netherlands

Christophe Paulussen

T.M.C. Asser Instituut ( email )

P.O. Box 30461
2500 GL The Hague, 2517JN
Netherlands

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